July 24, 2015

On June 26 the U.S. Supreme Court decided the “same-sex marriage” case Obergefell v. Hodges.
The Court held unconstitutional, by a 5-4 vote, state laws that limit
marriage to heterosexual couples. According to the Court, these limits
violate both the Due Process and Equal Protection clauses of the 14th
Amendment.

Justice Kennedy’s opinion for the Court focuses on the crucial role
that marriage, as a component of the liberty protected by the Due
Process clause, plays both in individuals’ lives and in structuring
society. Denying same sex-couples the opportunity to marry not only
affects what type of society we live in, but also impoverishes the lives
of a particular group of people in society. According to the Court,
individuals define themselves through marriage. In addition, through
marriage they access other “freedoms, such as expression, intimacy, and
spirituality.” (p. 13) Marriage is also a means for individuals to
achieve the “highest ideals of love, fidelity, devotion, sacrifice, and
family.” (p. 28) Furthermore, children in same-sex families are injured
by having to endure the stigma of familial inferiority as a result of
the non-recognition of their parents’ marriages. (p. 15)

Each of the four dissents objects to the majority’s conclusion that
there is a violation of the Due Process clause. The dissenting justices
argue that Justice Kennedy’s reasons for finding that same-sex couples
have a protected fundamental right to marry are matters of policy and
that the state legislatures, not the U.S. Supreme Court, should decide
what policies are best for the people and society overall. The Chief
Justice’s dissent, for example, does not deny that there is a
fundamental right to marry; instead the Chief Justice argues that this
fundamental right applies only to heterosexual couples because “the core
definition of marriage … [is]the union of a man and a woman.” (pp. 8
and 16.) This “core” meaning of the fundamental right of marriage is
“deeply rooted in this Nation’s history and tradition.” Constraints on
the definition of constitutionally protected rights keep the courts from
legislating.

The majority and the dissents all recognize that the terms “liberty”
and “marriage” must be interpreted. Unconstrained interpretation is
problematic because it is difficult to distinguish from the act of
legislating. Nonetheless, courts must interpret the words of a text,
including a constitution. To be legitimate within our system, judicial
interpretations must be bounded by an accepted and acceptable structure.
The Court and the dissents disagree on what this structure is.

The Chief Justice’s dissent searches for a “core” meaning of marriage
as a means of avoiding excessive interpretation. However, as the
Court notes, the institution of marriage has changed dramatically over
time. Different “core” meanings can be identified at different moments
in time, space, and society. As Justice Kennedy wrote in his opinion
for the Court, the doctrine of coverture was critical to the meaning of
marriage in the early 19th century. At the time, a married woman’s
husband could have determined where she would live, whether she could
enter any particular contract, and how to employ any assets she may have
owned upon marriage. He could also decide whether to force sexual
relations on her and under what circumstances to discipline her
physically or otherwise. In short, the central feature of her marriage
might have been her subordination to her husband, not the fact that he
was sexually male. The Chief Justice’s definition of marriage as based
on heterosexuality is a choice among many central definitions of
marriage.

The Court’s definition of marriage relies on a different set of
concepts to constrain its interpretation: individual autonomy, intimacy
and expression; the fundamental role that marriage plays in promoting
child development and in structuring society; and the importance of
equality as also articulated in the 14th Amendment.

For many decades, equality has had a critical function in identifying
the proper role for courts in interpreting the constitutionality of
majoritarian legislation. In our democratic system the courts protect
minorities from oppression by the majority. (p. 24) See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938)
As the Court’s opinion notes, the ideas behind the Equal Protection
clause reinforce the liberties protected by Due Process; restricting
marriage to heterosexuals would have the effect of “diminish[ing] the
personhood” of members of same-sex couples. (p. 19) Similarly, in U.S. v. Windsor,
the Court highlighted the humiliation and financial harm to children in
same-sex families when their parents’ marriages are not recognized by
the federal government. This role of protecting minorities against harm
done by the majority has been central to the role of the Court.

Since they cannot avoid interpretation, courts must identify the principles to guide their interpretations. In Obergefell,
the Court chose protection of the members of a minority group against
the demeaning life the legislative majority would have allowed them, a
life determined by 19th century understandings of marriage.

The process of identifying the parameters for constitutional
interpretation is one of the most important functions of courts and
lawyers. The fact that it is subject to vigorous debate and is likely
to continue to be so is healthy for our democracy.